How many of us have been tempted to buy a copy of the latest movie release on DVD at our local market?  Or have burned a copy of our iTunes downloads for friends?  The changing face of how consumers access music and entertainment in the 21st century has presented new challenges to copyright holders.  In 2001 it became apparent that a review of the Copyright Act 1994 was required to address these changes. This review gave birth to the Copyright (New Technologies) Amendment Act (“the Act”) which is expected to come into force in October 2008.

The Act has been introduced to ensure that New Zealand law keeps up to speed with recent advances in digital technology, and provides greater clarity and certainty over the scope and enforcement of intellectual property rights in the digital age.

Here is a summary of the Act, highlighting the important changes to the current law relating to copyright.

Liability of ISPs

How much control should an ISP have over what its subscribers post on their websites?  Are they expected to police copyright and constantly monitor content?

The Act puts in place an easier process for ISPs dealing with copyright material, while still protecting the rights of the copyright owner. A limited exception has been created for copyright infringement for ISPs to cover situations where the ISP is merely providing the physical facilities to enable a communication to take place.  There will be no liability for an ISP that is storing or caching infringing copyright material if the ISP deletes or prevents access to the material as soon as possible after it becomes aware that it is likely that copyright is being infringed.  Once notified of the alleged infringement, the ISP must decide if the material is, in fact, likely to infringe copyright. If the ISP decides that it is, and deletes or limits access to the material, it must inform the user of the material of what it has done.

The copyright owner still has the right to apply to the Courts for an injunction to require the ISP to remove the material if it chooses not to use this process.

Updating fair dealing provisions

Under the amended Act, schools, universities, archives, and libraries (Educational Resource Suppliers or ERSs) can create and store digital copies of works on the internet and other electronic retrieval systems if they meet certain conditions, including things such as only storing the material for an educational purpose, clearly identifying the author of the material if this is known, and setting out details of the ERS and the date the material was stored. The new limited exception to copyright infringement for ERSs will make it easier for schools to make greater use of audio visual material without infringing copyright.

Creating a format shifting exception for copying sound recordings

The Act addresses changing technology relating to the format shifting of sound recordings (for example, from CD to MP3 file).

The format shifting exception, allowing purchasers to copy music into different media, applies only if two conditions are met:

•     The original purchaser must not make more than one copy for use on each device owned for their own personal use, or the use of their household.
•     The purchaser must retain both the original version and the copy made.

Copying CDs for friends and online file sharing remain prohibited copyright infringing acts under the Act.

However, if music is bought subject to conditions, for example, which specify the number of copies which may be made for personal use, then those conditions override the specific provisions in the Act.

Decompiling or adapting computer programs

The Act creates a new limited exception for decompiling or adapting computer programs. The lawful user or licensee of a computer program will not infringe copyright by observing, studying or testing the functions of the program in order to determine the ideas and principles that underlie the program.

Technological protection measures (TPMs)

With advances in digital technology it has become easier to plagiarise and make illegal copies of copyrighted work, causing greater losses for copyright owners. Copyright owners are increasingly using TPMs to protect their copyright. TPMs are the technological tools used to restrict the use or access to a work (i.e. stopping people from copying the work), and are most commonly found on videotapes, DVDs, computer software, video games, and some audio CDs.

The Act will prohibit dealing with devices, means and information which enable people to circumvent these copyright protections. It does not prohibit circumvention of devices which merely control the access to the material, such as multi-zone DVD players which can be used to bypass the regional zone access protection.

Further, the Act introduces a criminal offence where the circumvention of a TPM is for large scale commercial dealing in copyright material.

Ban on the parallel importing of films

The amended Act continues the ban on the parallel importing of films for nine months after their international release date. The previous ban was set to expire on 31 October, 2008. The new ban will be in place until 31 October, 2013.

The purpose of the continuing ban on parallel importation is to encourage the investment in, and the promotion of, film production, distribution and exhibition industries and to protect cinema ticket sales by making sure the film is not available at the same time on DVD and video.

Lawyering up

The Act reflects changes and progress in digital technology and the public's use of such technology. It brings New Zealand law up to date, and in line with international standards. It allows the protection of copyright owner's rights, while recognising that the changing usage of technology has required a re-evaluation of the law that governs it.

This article contains only a general overview of the principal amendments to current law and should not be acted upon without advice specific to your circumstances. If you do have specific queries on how the new Act will impact your business, we suggest you consult your lawyer.